Citation Nr: 9808483
Decision Date: 03/20/98 Archive Date: 04/02/98
DOCKET NO. 96-45 776 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to an increased evaluation for residuals of a low
back injury, status post left L4-L5 hemilaminectomy and disc
fragment resection, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W.L. Puchnick, Associate Counsel
INTRODUCTION
The veteran served on verified active duty from February 1989
to June 1991, with additional service in the Michigan
National Guard.
This case is currently before the Board of Veterans’ Appeals
(BVA or Board) on appeal from a May 1995 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Detroit, Michigan, which denied an increased evaluation
for residuals of a low back injury, status post left L4-L5
hemilaminectomy and disc fragment resection.
Subsequent to the entry of the veteran’s appeal, the RO
increased the evaluation for his service-connected disability
to 20 percent, effective January 1, 1995, in a March 1996
decision by the Hearing Officer. The Board notes that in a
claim for an increased rating, the claimant will generally be
presumed to be seeking the maximum available benefit allowed
by law and regulation. Therefore, it follows that such a
claim remains in controversy where less than the maximum
benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993).
There is nothing in the record to show that the veteran
expressly stated that he was only seeking a 20 percent rating
for his low back disorder. Hence, the Board will consider
the increased rating decision on appeal.
In his Informal Hearing Presentation dated in October 1997,
the veteran’s representative raises a claim of entitlement to
service connection for lateral femoral cutaneous neuritis as
secondary to the veteran’s service-connected low back
disability. Because this issue has not been developed for
appellate review, it is referred to the RO for appropriate
action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected low back
disability is more disabling than currently evaluated. He
requests a higher evaluation under either Diagnostic Code
5292 or 5293. He states that he has taken five weeks off
from his job due to the low back disorder, and that he is
required to wear a transcutaneous electrical nerve
stimulation (TENS) unit because of his pain. He asks that
all reasonable doubt be resolved in his favor.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the record supports the
assignment of a 40 percent disability evaluation for the
veteran’s service-connected residuals of a low back injury,
status post left L4-L5 hemilaminectomy and disc fragment
resection.
FINDING OF FACT
The veteran’s service-connected low back disability is
manifested by severe limitation of motion of the lumbar
spine; it is not manifested by ankylosis of the lumbar spine
or severe intervertebral disc syndrome with recurring attacks
with intermittent relief.
CONCLUSION OF LAW
The criteria for a 40 percent disability rating for residuals
of a low back injury, status post left L4-L5 hemilaminectomy
and disc fragment resection, have been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.3,
4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5289, 5292,
5293 (1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran’s claim is well grounded within the meaning of
38 U.S.C.A. § 5107(a). The United States Court of Veterans
Appeals (Court) has held that a mere allegation that a
service-connected disability has increased in severity is
sufficient to establish an increased rating claim as well
grounded. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994);
Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).
Further, after examining the record, the Board is also
satisfied that all relevant facts have been properly
developed in regard to his claim and that no further
assistance to the veteran is required to comply with the duty
to assist, as mandated by 38 U.S.C.A. § 5107(a). Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990); Littke v. Derwinski, 1
Vet. App. 90, 91 (1990).
A review of the evidence of record reveals that in a February
1993 rating decision, the RO granted service connection and
assigned a 10 percent disability evaluation for residuals of
a low back injury, status post left L4-L5 hemilaminectomy and
disc fragment resection. The 10 percent disability
evaluation was assigned pursuant to Diagnostic Code 5010-
5293. The RO determined that the veteran sustained a back
injury in June 1992 during active duty for training (ACDUTRA)
with the Michigan National Guard. This evaluation was based
upon the veteran’s service medical records, VA outpatient
treatment reports dated in June 1992, a VA hospital summary
dated in August 1992, and the report of a November 1992 VA
examination.
The veteran was afforded a VA examination of the lumbar spine
in January 1995. He reported a sudden sharp pain in the
lumbar region two years previously while lifting a piece of
heavy equipment during Reserve duty. The veteran reported
feeling better following a laminectomy in August 1992. He
reported intermittent back pain, which radiated to his left
calf. He stated that the discomfort occurred two to three
times per week, and might be a brief pain lasting only
moments, or a dull aching pain lasting all day. The veteran
reported that walking any distance or climbing high stairs
increased the pain. Physical examination revealed no
postural abnormalities or fixed deformity. There was mild
spasm of the lumbar paraspinal muscles on the left, in
addition to tenderness of muscles in the same area. There
was also a 5.0 centimeter midline scar in the lumbar region.
Range of motion revealed forward flexion to 15 degrees,
backward extension to 10 degrees, left and right lateral
flexion to 15 degrees, and left and right rotation to 30
degrees. The veteran moved with obvious pain during all of
the preceding maneuvers, and had obvious pain attempting to
move about on the examination table. Radiological
examination of the lumbar spine revealed no abnormality. The
impression was back sprain, chronic.
The radiological impression following May 1995 VA computed
tomography (CT) of the lumbar spine was left hemilaminectomy
at the L4-L5 level without significant scar formation. There
was only slight progression of the posterior central disc
bulge/protrusion with resultant indentation of the anterior
thecal sac at L4-L5. A May 1995 VA radiology report of the
lumbosacral spine stated an impression of mild to moderate
relative narrowing of L4-L5 level consistent with
degenerative disc disease. Findings were consistent with a
history of prior left L4 hemilaminectomy. Lumbar vertebral
bodies were in good alignment and their heights maintained.
The 10 percent disability evaluation was confirmed by the RO
in May 1995 and July 1995, based upon the preceding January
1995 VA examination report, and medical statements received
in July 1995 from the VA Medical Center (VAMC), Ann Arbor,
Michigan, showing that the veteran required five days,
followed by an additional two weeks, of time off from his
job.
A June 1995 VA neurosurgery clinical examination revealed a
positive straight leg raising sign present on the left. The
veteran’s strength was normal, but he had some giveaway
weakness in both lower extremities. Deep tendon reflexes
were 2+ and symmetric. Ambulation and casual gait were
normal. Examination of CT scan demonstrated a disc bulge at
L4-L5, which may have been slightly worse than a previous
study in 1993.
A report of a physiatric evaluation and electromyograph (EMG)
by G.R. Weiner, D.O., dated in December 1995, showed spinal
examination to reveal some mild restricted lumbar flexion due
to pain. There was a suggestion of some lower lumbar spinous
soreness to pain but the sciatic notches were, at most, not
sore, and not felt to be truly painful. Straight leg raising
failed to reveal sciatic nerve pain, but did seem to cause
some muscle stretch discomfort. Ambulation was intact, and
lower extremity examination found range of motion to be
intact. Motor examination of the lower extremities was
intact to manual muscle testing and also to weight-bearing
function testing. Sensory examination of the posterior torso
and lower extremities was unremarkable except for large
elliptical dysesthesias of the anterolateral thighs on both
on the right and left. Deep tendon reflexes were
symmetrically active. The veteran had pain to palpation of
the left lateral femoral cutaneous nerves at their exits from
the groin bilaterally. Electromyogram studies were all
within normal limits, as were motor nerve conduction studies.
The impressions were that the veteran presented with large,
purely sensory dysesthesias of the anterolateral thighs,
i.e., lateral femoral cutaneous neuritis (bilateral). The
examiner could not confirm any current lumbar radiculitis.
A January 1996 VA clinical chart review concluded that the
veteran was status post L4-L5 semi-hemilaminotomy with
removal of large disc fragments. May 1995 diagnostic imaging
indicated no significant scar tissue formation and slight
mild progression of posterior disc bulge. Magnetic resonance
imaging (MRI) with contrast was recommended. Significant
deficits to strength and reflexes in the lower extremities
were not noted to date. There was a possibility that the
veteran may have had some progression of scar tissue or disc
protrusion which was causing a predominant sensory
radiculopathy type of picture.
The impression following February 1996 VA MRI of the lumbar
spine was status post left-sided L4-L5 laminectomy.
Recurrent/residual central disc protrusion/herniation was
present.
During his personal hearing in February 1996, the veteran
testified that following his June 1992 laminectomy on his L4-
L5 discs, he had few problems and minimal intermittent pain
until May 1995. He explained that his work as a phlebotomist
in the Ann Arbor VAMC required a good deal of bending over
and standing, which strained his back and legs and required
him to take a total of five weeks off from work. The veteran
described sharp pain sensations radiating into the left calf
and tailbone. He reported the pain as intermittent, and as
being worse during cold or damp weather. The veteran stated
that his low back disability disqualified him from employment
as a postal carrier, and resulted in his dismissal from the
National Guard Reserve Officers’ Training Corps (ROTC).
As noted, in March 1996, the RO assigned the current 20
percent disability evaluation for low back injury, status
post left L4-L5 hemilaminectomy and disc fragment resection.
A November 1996 VA clinical evaluation assessed low back
pain, no change, sometimes made better and sometimes made
worse by TENS unit. A November 1996 VA X-ray examination of
the lumbosacral spine revealed persistent mild disc space
narrowing at L4-5 and minimal degenerative joint changes. No
definite postoperative changes were evident, except for
questionable inferior left L4 hemilaminectomy due to the
relative similar size of the left-sided lamina at that
location. The radiological impression was degenerative disc
disease at L4-5, and questionable postoperative changes
consistent with a left L4 hemilaminectomy.
VA outpatient treatment reports dated from January to
November of 1997 reveal that the veteran presented for
clinical evaluation in January 1997 with complaints of
chronic low back pain. He reported that he was “60 % of
time OK” and that he had “25% bad days.” The examiner
noted sciatic-type pain. The veteran again complained of
chronic low back pain in May 1997. In June 1997 he reported
a sharp pain “shooting” from the left back, across the
thigh, to the medial knee, and down the lateral calf to the
great toe. Examination of the back revealed tenderness in
the midline lumbar and left sacroiliac joint areas. The
assessment was chronic left sciatica. Daypro and Percocet
were prescribed. During a July 1997 VA clinical evaluation,
the veteran complained that his back pain was worsening in
the L4-L5 region, mostly upon standing. He reported that the
pain had been “off and on” since 1992 and that pain
medications were not helping. The pain was described as
“unbearable” after he had lifted a television set two to
three days previously. A CT scan was recommended. The
clinical impression was back pain. A November 1997 clinical
assessment was likely recurrent L4-5 disc herniation with
recurrent left L5 radiculopathy.
A statement from a resident neurosurgeon of the Ann Arbor
VAMC, dated in November 1997, reported that upon examination
that same month, the veteran was found to have symptoms
consistent with left-sided L5 radiculopathy. Review of the
veteran’s MRI scan revealed that the radiculopathy was
largely due to scar tissue surrounding the veteran’s nerve
root, and that it could not be corrected with surgery. The
neurosurgeon concluded that the condition was likely to be
long standing, with relapsing and remitting severity.
In reviewing the foregoing, the Board initially notes that
under the laws administered by VA, disability evaluations are
determined by the application of VA’s Schedule for Rating
Disabilities, which is based on the average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. Any reasonable doubt
regarding the degree of disability will be resolved in favor
of the claimant. 38 C.F.R. § 4.3.
The veteran’s residuals of a low back injury, status post
left L4-L5 hemilaminectomy and disc fragment resection, is
currently rated as 20 percent disabling pursuant to 38 C.F.R.
§ 4.71a, Diagnostic Code 5293. That section provides for a
20 percent disability evaluation for moderate intervertebral
disc syndrome with recurring attacks. A 40 percent
disability evaluation is warranted for severe intervertebral
disc syndrome involving recurring attacks, with intermittent
relief. Review of the evidence of record shows that during
his January 1995 VA examination, the veteran reported
intermittent back pain, which radiated to his left calf. He
stated that the discomfort occurred two to three times per
week, and might be a brief pain lasting only moments, or a
dull aching pain lasting all day. Moreover, during his
personal hearing in February 1996, the veteran described
sharp pain sensations, radiating into the left calf and
tailbone. He testified that the pain was intermittent, worse
during cold or damp weather. During the January 1997
clinical examination, the veteran reported that he had “25%
bad days.” He also reported during a July 1997 clinical
evaluation that his back pain had been “off and on” since
1992. Hence, the veteran’s current symptomatology with
respect to Diagnostic Code 5293 more nearly approximates the
criteria for a 20 percent disability evaluation. A rating in
excess of 20 percent is not warranted under this section
because there is no evidence of severe intervertebral disc
syndrome with recurring attacks with intermittent relief.
This does not end the Board’s inquiry as the question remains
whether a higher rating is warranted under an alternative
diagnostic code.
Under 38 C.F.R. § 4.71a, Code 5292, a 40 percent disability
evaluation is warranted for severe limitation of motion of
the lumbar spine. During VA examination of the lumbar spine
in January 1995, range of motion revealed forward flexion to
15 degrees, and backward extension to 10 degrees. Left and
right lateral flexion were to 15 degrees, and left and right
rotation to 30 degrees. The Board concludes that the cited
limitation of motion of the lumbar spine (particularly
forward flexion) constitutes “severe” disability under
Diagnostic Code 5292. Thus, a 40 percent disability
evaluation pursuant to that section is warranted. This is
the maximum schedular evaluation available under section
5292. The Board acknowledges that during VA examination in
January 1995, the veteran moved with obvious pain during all
of the above maneuvers, and had obvious pain attempting to
move about on the examination table. However, because the
veteran is now rated at the schedular maximum, a higher
disability evaluation is not warranted under DeLuca v. Brown,
8 Vet. App. 202 (1995) for functional loss due to pain upon
motion. See 38 C.F.R. §§ 4.40, 4.45; Johnston v. Brown, 10
Vet. App. 80, 84-85 (1997).
Moreover, because there is no evidence of pronounced
intervertebral disc syndrome, a 60 percent evaluation under
Diagnostic Code 5293 would also be inappropriate. There is
no clinical evidence of an absent ankle jerk, demonstrable
muscle spasm, or persistent symptoms compatible with
pronounced intervertebral disc syndrome. Nor does he exhibit
ankylosis of the lumbar spine to permit a rating in excess of
40 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5289.
The veteran’s complaints of pain on motion, and his
restriction due to that pain, have been fully considered in
determining any functional limitation of motion of the lumbar
spine pursuant to 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8
Vet. App. at 206.
The evidence is clear from the medical evidence of record
that degenerative arthritis of the lumbar area of the spine
is present. Moreover, it is also evident from the record
that the veteran’s low back disorder currently manifests a
decreased range of lumbar spine motion, particularly on
forward flexion. However, to rate that symptom as a separate
disability under either Diagnostic Code 5003-5292 or 5010-
5292, based solely on limited motion due to arthritis of the
lumbar spine, would overcompensate the veteran for the actual
impairment of his earning capacity and would constitute
pyramiding. 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App.
225, 230 (1993); Brady v. Brown, 4 Vet. App. 203, 206 (1993).
In this case, the symptomatology of the veteran’s status post
hemilaminectomy, disc fragment resection, and arthritis of
the lumbar spine (i.e., limitation of lumbar spine motion) is
not separate and distinct, and would therefore result in
evaluation of the same manifestations twice under various
diagnoses. See Esteban v. Brown, 6 Vet. App. 259, 261-62
(1994). Accordingly, a separate disability evaluation is not
in order.
Moreover, the Board has considered the provisions of
38 C.F.R. § 4.7, but finds that there is no question
presented as to which of two or more evaluations would more
properly classify the severity of the veteran’s low back
injury, status post left L4-L5 hemilaminectomy and disc
fragment resection.
Additionally, the Board would point out that its denial of
the instant claim is based solely upon the provisions of the
VA’s Schedule for Rating Disabilities. In Floyd v. Brown, 9
Vet. App. 88, 96 (1996), the Court held that the Board does
not have jurisdiction to assign an extraschedular evaluation
pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) in the
first instance. Clearly, due to the nature of the veteran’s
low back disorder, there is some interference with his
employment. However, the record does not reflect frequent
periods of hospitalization because of the veteran’s service-
connected disability, nor interference with employment to a
degree greater than contemplated by the regular schedular
standards, which are based on the average impairment of
employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993); see also Moyer v. Derwinski, 2 Vet. App. 289, 293
(1992) (noting that the disability rating itself is
recognition that industrial capabilities are impaired).
Accordingly, the Board finds that the criteria for submission
of assignment of an extraschedular rating pursuant to
38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9
Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App.
218, 227 (1995).
ORDER
An increased evaluation of 40 percent for residuals of a low
back injury, status post left L4-L5 hemilaminectomy and disc
fragment resection, is granted, subject to the laws and
regulations governing the payment of monetary benefits.
R. F. WILLIAMS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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